The Dutch civil court system consists of three instances. The District Courts, each in one of the 19 districts in the Netherlands, are the courts of first instance. Districts Courts have jurisdiction to hear any disputes of a civil law nature. In addition to the civil chamber, District Courts also comprise a criminal chamber and an administrative chamber.
For monetary claims up to 5,000, or specific types of cases such as employment disputes , agency, lease related disputes, a separate (cantonal) division within the District Court has jurisdiction. The cantonal judge used to reside in a separate court, the cantonal court. As of 1 January 2002, these courts have been merged into the District Courts as a separate division. Unlike civil cases before the District Court, there is no obligation for a party to retain the representation of legal counsel in cases before the cantonal division.
The second instance consists of five courts of appeal, who have jurisdiction over appeals against judgments of the courts of first instance. Such appeals are heard de novo, allowing new evidence, fact finding and legal argumentation. The Enterprise Chamber of the Court of Appeal in Amsterdam, however, acts as a court of first instance with respect to the policy or conduct of business of a legal entity. The Enterprise Chamber also has jurisdiction to deal in first instance with matters concerning company annual accounts.
The Supreme Court is at the top of the judicial hierarchy. It hears appeals against judgments of the courts of appeals as a court cassation. If the lower court judgment violates the law procedurally or materially (substantively),the Supreme Court can annul that judgment. It does, however, not rule on the facts and bases its decision on the facts as found by the courts in first or second instance.
In addition to the above-mentioned courts, the Netherlands has a number of specialised courts: the Central Board of Appeal and the board of Appeal for Trade and Industry. The Central Board of Appeal deals with appeals in cases involving the civil service and social security issues. The Board of Appeal for Trade and Industry deals with cases in the area of social-economic administrative law such as certain antitrust issues.
2. Limitation issues: What are the time limits for bringing civil claims?
Under Dutch, law civil claims are subject to time limitations, and also expiration. Time limitation can be (repeatedly) extended rather easily. This can be achieved by either starting a law suit or sending a written notice in which the claimant unequivocally reserves its right to pursue his claim. The effect of an extension is that the time limitation period starts anew. If an expiration period passes, the possibility to pursue the claim expires. Extension is in principle not possible. Under Dutch law there are some exceptions to this rule.
The general rule under Dutch law is that claims are time barred after 20 years from the time they arise. However, the law contains specific provisions for several situations with different (generally shorter) time periods.
Claims regarding performance of a contractual obligation must be brought within five years after these claims fell due. That same five years limitation period applies to claims regarding (tort) compensation of damage or payment of a penalty, which starts running the day following the day in which the injured party becomes aware of the damage or the penalty accruing. In any event, a claim for compensation of damage is time barred after 20 years following the occurrence that caused the damage or led to the penalty becoming due. In case of damages due to environmental pollution, the limitations period is 30 years.
Claims with regard to rescission or specific performance of a contract have a five-year time limitation from the moment the creditor becomes aware of the default, or in any event 20 years following the default. Other periods of limitation apply to causes of action regarding cultural heritage claims, ranging from one to 75 years depending on the type of claim.
3. Starting proceedings: How are civil proceedings commenced?
Depending on the type of claim, civil proceedings are commenced by either having a bailiff serving a writ of summons to the other party, or by a party the filing of a petition with the court. The law specifies which type of case requires the filing of a petition. In areas where the law is silent, the case will have to be brought by means of a writ of summons. Examples of procedures that have to be commenced through a petition are family-related disputes (with the exception of divorce cases) and the rescission of a labour agreement.
However, if a party makes the wrong choice when filing its case, article 69 of the DCCP allows the court to permit the party to correct such mistake.
A writ of summons has to be served by a bailiff on the other party. A petition, however, is filed directly with the court.
The procedure is considered to be pending as of the moment the bailiff served the writ of summons, or in the event of a petition, the moment the petition is received by the court. In order for the case to be pending, the writ of summons must also be filed with the court`s registry prior to the appearance date stated in the writ. In the event that a party, forgets to do so, it can rectify this by serving a new writ stating a new court date.
4. Timetable: What is the typical procedure and timetable for a civil claim?
The course of the procedure in first instance, including the applicable time limits, includes possibilities to receive an extension and the order of proceedings are governed by the National Regulation for the Docket of 1 March 2007.
In a straightforward procedure, after the claimant`s serving and filing of the writ of summons and payment of the court fees, the defendant typically submits an answer. The judge may thereafter order both parties to appear for a hearing. The purpose of this hearing is to either assess whether a settlement between the parties can be reached or provide information to the judge. After that hearing, the judge can allow the parties to further submit written pleadings (reply followed by rejoinder), or instruct a party to provide evidence to support or refute certain allegations. A party has in principle six weeks to submit its answer to a writ of summons, or another statement. This can be less for incidental issues (eg, jurisdictional issues) or simple legal briefs. In principle no extension of time is granted, except with both parties` agreement, or in the event of force majeure or compelling reasons.
A straightforward procedure, without any incidents (such as jurisdictional or evidentiary issues), could last one year. However, if the procedure becomes more complex it is not uncommon for it to last two, three or even five years or more.
The above text is an excerpt from the Netherlands chapter of the global dispute resolution guide, Getting the Deal Through – Dispute Resolution 2008 and is provided for informational purposes only, and does not constitute legal advice. This book was published by Law Business Research Ltd, and the Netherlands chapter was contributed by Thabiso van den Bosch and Nathan O’Malley. You can read the full chapter by clicking here.